The Domain of Reflexive Law

Abstract

In Regulating Intimacy: A New Legal Paradigm, Jean Cohen synthesizes liberal and egalitarian justifications for a right to sexual privacy. Cohen proposes that regulation of sexual privacy, where permissible, be accomplished through "reflexive law." This Review Essay expresses broad sympathy for Cohen's project, while suggesting an expansion. In Cohen's reflexive paradigm, the sovereign in its lawmaking capacity sets general standards that steer primary actors but simultaneously leave them with a substantial zone of freedom in which to engage in self-regulation. Although it permits substantial autonomy, Cohen's conception of reflexive law is essentially topdown. This Review Essay offers an amended account of reflexive law in which data drawn from experience at the relatively local level are continually refined and transmitted to the relatively central standard-setter, which uses the data continually to update the standards all must meet. This amended account is accordingly both top-down and bottom-up, and for that reason it may be particularly well-suited to contexts-such as regulation of issues touching on sexual privacy-where the simple announcement of a controversial legal norm would meet with substantial opposition.

Keywords: sexual privacy, same-sex, reflexive law, Fourteenth Amendment, liberals, welfarists, Cohen, Regulating Intimacy: A New Legal Paradigm